The following article takes into consideration the often undervalued crime of
that is committed against women. Here, we have
discussed the various definitions and explanations of this particular crime
along with the harms that are caused to the women as a whole. We have also
discussed the history of development of the laws regarding this. However,
our main aim has been to discuss the scenario that is been going inside the
world's biggest democracy, India.
To justify the violations of the rights of the women, the various sections
of the Indian constitution have also been analyzed and compared. Since,
the law has not yet been able to make it's way to the Indian Law books,
therefore, various case laws involving the debate of Marital Rape have
been discussed along with the arguments that have been crucial in the judgment
of these very cases.
Marital rape refers to unwanted intercourse by a man with his wife obtained by
force, threat of force, or physical violence, or when she is
unable to give consent. It is a violent act done by the husband to his wife
without her consent and subsequently abusing her physically and mentally.
Historically, RATUS is the generic term for rape, in roman law,
understood as an offence consisting of the violent carrying away
of women and is better translated as abduction
. Raptus, in roman
law, covered many crimes of property, including women who were also considered
as property. Therefore, the punishments of non-consensual sexual
intercourse were framed to protected the interests of the society in penalizing
unchaste behavior, rather than the interests of the survivor.
It is factual that women have been denied of their rights for a long time now in
almost every society present in the world but this notion has been attacked in
the last century by the uprising of the feminists' ideology and the increase in
the literacy rate of the women. Also India is one of the 36 countries where,
in spite of the fact that the youth consists of around 34% of the total
population, there doesn't exist a law to counter a social evil as big as
The very initial rationale used for not considering marital rape is based on Sir
Matthew Hale's statement made in 1678, 17th century that:
The husband cannot be guilty of rape committed by himself upon his lawful wife,
for their mutual matrimonial consent and contract the wife hath given up herself
in this kind unto her husband, which she cannot retract'.
Shockingly, in INDIA, marital rape is not included in the narrow purview
of definition of rape. Rape is just not a heinous crime but rather it is an
infringement of the basic human right of a person for example, a married
woman's right to equality can be questioned when she is denied justice after
being exposed to such a trauma by her very own husband. A man can rape his wife
and can escape from the punishment of rape by using the marriage veil and it
cannot be questioned.
It is a matter of concern that a basic right of a married women is denied when
it comes to marital rape. the Indian society can be said to have run by a
patriarchal framework since forever and therefore a married women basic rights
are not considered even in today's India. Every individual legal entity has some
basic rights, but it is shameful to say that a married woman doesn't have
her marital rights in India.
Historically, the crime of rape has been considered as a crime of theft
towards of a man's property who ma either be the father or the husband of the
person. Since, a person cannot steal his own property, therefore,
he cannot ever commit the crime of rape towards his wife. Moreover, a
woman's legal rights were subsumed by those of her husband.
This was the case up until the 20th century after which in the 1970s,
where the women rights and the feminists' movements started to take place,
and these groups initiated the anti-rape movements and their voices rose in
unison against these biased acts. However, in spite of these very rights
being enforced by the law, the right to sexual privacy was still a distant
dream for the women. Marriage in itself is considered as a consent and this in
turn allows the husband to have sex with the wife without her consent.
The history of marital rape laws dates back to the year 1922 where it started in
the Soviet union, followed by the Poland in the year 1932,
Czechoslovakia(modern day Czech republic ) in the year 1950 and then these
countries were joined by the members of the communist bloc such as the Sweden
and Norway in the years 1965 and 1971 respectively.
Marital rape was then criminalized by Yugoslavia in the year 1977. Belgium was
early to detect marital rape as a crime by the husband in the year 1979 by the
law was amended several years past in the year 1989 when the definition of rape
was broadened to include marital rape in its scope. It was then criminalized in
Israel in the year 1980 by citing Talmud which is the religious text of the
In Australia, the criminalization began in the year 1981 with New South
Wales followed by other states from year 1985 to 1992. and during this time,
several British colonies also criminalized it such as Canada in the year 1883,
New Zealand in the year 1985, Ireland in the year 1990. other countries
following were, Austria in 1989, Switzerland in 1922, Spain in
1922 saying that the freedom of making own decisions were extended to sexual
activities in a marriage. In Europe, the countries to criminalize this
were, Finland in the year (1994), Ireland in the year (1990) by
stating that the husband can be guilty of raping his wife. Followed by France
in the year 1994, Germany in the year 1997.
It was criminalized in the year (2003) in Bosnia and Herzegovina in after the
criminal code came in to being in the year 2003. The following European
countries which followed the trend were, Portugal (1982), Serbia
(2002), Luxembourg (1994), Netherlands (1991), Italy (1976),
Liechtenstein (2003) and Greece (2006). In South America, Colombia
criminalized the marital rape in (1996) and Chile in (1999), Namibia
criminalized it in (2000), Papua new guinea in (2003) and Thailand in the
Recent countries to criminalize marital rape include Zimbabwe
(2001), Turkey (2005), Cambodia (2005), Liberia (2006),
Nepal (2006), Mauritius (2007), Ghana (2007), Malaysia (2007),
Thailand (2007) , Rwanda (2009), Suriname (2009), Nicaragua (2012),
Sierra Leone(2012), south Korea (2013), Bolivia (2013) Samoa (2013),
Apart from these countries, there still exist 36 such
countries including India which is considered to be the world's biggest
democracy, who have not yet criminalized marital rape or haven't included
it in their law. These are Afghanistan, Algeria, Antigua and Barbuda,
the Bahamas, Bahrain, Bangladesh, Botswana, Brunei,
Cameroon, central African republic, China, Congo,
Djibouti, Egypt, equatorial guinea, Eritrea, eSwatini,
Ethiopia, guinea, Haiti, India, Iran, Iraq,
Jamaica, Jordan, Kuwait, Libya, Madagascar,
Malawi, Maldives, morocco, Myanmar, Nigeria, north
Korea, Oman, Palestine, Saint Lucia, Saudi Arabia, South
Sudan, Sri Lanka, Syria, Tajikistan, Tanzania,
Tuvalu, Uganda, UAE and, Yemen.
Marital Rape and Pertinent Laws
India has advanced in every possible diverse field, but still marital rape
is not considered as a criminal offence. Despite different initiatives–
amendments, new legislation and law commission the marital rape is not
criminalize, this shows the giant loophole in the country's judiciary and
India is included in 36 countries where the marital rape is
Here marital rape exists as de facto but not as a de jure. In the others
countries the legislature was able to throw the light on this issue or the
judiciary played important role in recognizing the importance of marital rape.
But in India the judiciary and legislature has there own reasons not to make
their decision on this issue. They found some bizarre reasons like saving the
sanctity of marriage institution so as to not criminalize the marital
rape. Section 375 of the Indian Penal Code(45 of 1860) which describes the rape
provision, reflected the very archaic thoughts and sentiments, given
in exception clause Sexual intercourse by man with his own wife, the wife
not being under 15 years of age, is not rape
Section 376 of Indian penal code defines the punishment of rape. According to
the punishment a man is said to be punished with imprisonment in either of the
description a term which is not less than 7 years but which can
be extended up to life or for a period extending up to 10 years and shall also
be liable to fine unless the woman raped is his own spouse, and is not
under 12 years of age, in which case, the husband shall be punished with
imprisonment of either for a term which may extend to 2 years with fine or both.
This section is dealing with sexual assault, in a very narrow purview of
rape which lays down that, an offence of rape within a marriage is
considered as rape only if the wife is less than 12 years of age. If
she is between 12 to 15 years, an offence is committed, however,
less serious, with milder punishment. By the time, the age crosses 15,
there is no given or stated legal protection accorded to the wife, in
direct contravention of human rights regulations.
This gave rise to the demur
that how can the same law be providing the legal age of consent for marriage to
be 18 while, protecting form sexual abuse only those up to the age of
15? Above the age of 15, there is no remedy the woman has. For this the
Law Commission in its 42nd Report advocated the inclusion of sexual intercourse
by a man with his minor wife as an offence it was seen as a ray of hope.
Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC), which allowed
the husband of a girl child— between 15 and 18 years of age to legally have
sexual intercourse has been criminalized by the Supreme Court. Supreme Court
declared that sexual intercourse by a man with his wife, who is below 18 years
of age, is rape. therefore, the exemption clause now reads-'Sexual intercourse
or sexual acts by a man with his own wife, the wife not being under eighteen
years of age, is not rape.
A Bench of Justices Madan B. Lokur and Deepak Gupta observed:
Human rights of a girl child are very much alive and kicking whether she is
married or not and deserve recognition and acceptance.
The Indian penal code was amended in 1983 to include criminalization of spousal
rape during the court has granted the judicial separation.
The instances wherein the husband can be held liable for marital rape:
Recent debate before the judiciary:
- When the married women is between the age group of 12–15 years, the
offence punishable with imprisonment up to 2 years or fine, or both.
- When the wife is below the age of 12 years, the offence punishable with
imprisonment of either description for a term which shall not be less than 7
years perhaps it may extend to life or for a term which can be extended up
to 10 years and shall also be liable to fine.
- When the court has granted the judicial separation, the offence of rape
of a judicially separated wife, will be punishable with imprisonment up to 2
years and fine.
A long debate has also been going on the contradiction which was being followed
as the girls of age between 15 to 18 years of age were still not included in the
definition of sexual assault by the husband since the marriage below the age of
18 is considered voidable. After the recent amendment in the section 375 of the
Indian Penal Code, exception 2 has been added which states that:
- When the wife is between the age of 15 – 18 years, the husband can be
held liable for the offence of rape and can be imprisoned for 10 years under
the India Penal Code or even a life term under the Protection of Children
from Sexual Offences (POSCO) Act.
The women above the age of 18 can take recourse
under 2005, the Protection of Women from Domestic Violence Act,
2005, the act doesn't consider marital rape as a crime, but consider
it as a form of domestic violence. moreover, the much awaited domestic
violence act of 2005 has been a completely flop with respect to the rights of
married women, it condones sexual abuse against a woman in marriage or in
a live-in relationship only of it is life threatening or grievously hurtful and
doesn't entitle the women, the freedom of decision of their wants and
despite the fact that apart from their marriage, they are still an
The following are the common arguments that are given against the idea of
criminalizing marital rape.
Criminalizing marital rape is against India's culture- the argument is backed by
the justification that 'It will create absolute anarchy in families and our
country is sustaining itself because of the family platform which upholds family
values'. The presumption exists in Indian society that marital rape laws
would destroy the marriages and will prevent all the possible means of
Once the women are married a tacit consent is given:
The idea that once a woman is married, she gives an incessant,
continuous sexual consent to her husband. Thus, assuming that There is
an implied consent to have sexual intercourse when a woman marries a man.
Dissatisfied, angry, vengeful wives might charge their innocent husbands with
the offence of marital rape - it was backed by the reasoning that criminalizing
marital rape can become an easy tool to harass the husbands
if all sexual acts between a husband and his own wife qualify to be marital rape
then the judgment whether it is marital rape or not will singularly rest with
Due to the near impossibility of proving marital rape, its criminalization
would only serve as an increased burden to the already overburdened legal
From all the above arguments one thing can be deduce very easily that none of
them are tenable arguments. and therefore, the rebuttals of the same is
In a marriage when husband rapes his wife, the trust breaks of a women and
subsequently the sanctity of a marriage is destroyed. it is evident that one of
the important goals of a marriage institution is to protect a marriage,
but it cannot override the fundamental objective of law in general and criminal
law in particular which is to protect and preserve the bodily integrity of a
human being. After this heinous crime, to withhold a marriage and paving
way for reconciliation is utter failure and futile.
It is true that after marriage a women gives her implied consent to her husband
for sexual intercourse but an expression of love and affection is completely
different from a forced sex .This argument roots can be seen back then in1700s
where Mathew hale of England declared the husband cannot be guilty of rape
committed by himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given herself up in this kind unto her
husband which she cannot retract.
After this another justification came in 1753 by William Blackstone where he
supported common law doctrine of coverture which is legal status of married
women as her husband's property. Blackstone argued after marriage, husband and
wife are considered as one person in the eyes of law, indirectly snatching all
the right of a women and ensuring that she could not use her right against her
husband. despite the 2017 Gujarat high court ruling, which clearly says It
has long been time to jettison the notion of 'implied consent' in marriage. The
law must uphold the bodily autonomy of all women, irrespective of their marital
The criminal justice system in India provides a potential inherent safeguard
such as the requirement of proof beyond any reasonable doubt. It is not that
easy to make a fabricated case against the men. There is a thorough procedure
through which a woman has to go to prove that she is been raped.
It is also important to take a glance at Protection of Women from Domestic
Violence Act, the Dowry Prohibition Act and Section 498A of the IPC,
which criminalizes physical and mental distress to a woman by her husband or his
family. In against of these laws the same argument was presented before the
court of law, that women will falsely accuse their husbands for vengeance,
blackmailing. Therefore, the argument that there is a risk of fabricated
case cannot used as a ground to takeaway women right.
According to the latest national health and family survey for 2015-16,
5.4% women have experienced marital rape, under this category. But while
the data on marital rape in India exists, marital rape as a crime,
does not exist
. And yet 5.4% of married Indian women say they have
experienced marital rape. 4.4% of them say they have experienced marital rape in
just the last 12 months before this survey.
The figure reported by NFHS-3 for 2005-6 was 9.5%. there are victims of marital
rape all over the India and merely the fact that marital rape would be very
difficult to prove is no reason for not recognizing it as a crime.
Rape is a brutal and awful crime against a women, it is the worst type of
sexual violence that is occurring at the family level. It is just not a crime
but an assassination of a women dignity. When a woman gets married she doesn't
waive her right as a legal entity and therefore snatching the rights of a
married women on the ground of marriage is utter unjust and discriminatory.
The fact that a man can get away from the punishment of rape in marriage
indicates an acceptance of the archaic understanding that wives are the sexual
property of their husbands and the marriage gives them legitimate authority of
having coerced sex. The Indian law system utterly fail in providing protection
to the married women from their perpetrator husbands. Decriminalization of
marital rape leads to violate article 14 and article 21 of Indian constitution
i.e. the right to equality and right to life and personal liberty.
The elementary difference between a consensual sex and a rape is whether a woman
has consented for the sex or not. A man cannot force a woman against her consent
irrespective of what relation they share.
The supreme court has recognized rape of a minor wife by criminalizing the
exception (2) of section 375 of Indian Penal Code, but still the major
wives are not provided the same rights. This is the time when marriages should
stop being treated as sacrosanct and stringent actions are required to be taken
against the perpetrators who are hiding before the veil of the marriage.
The marriage should not be taken as a ground to deny the right of a woman. Every
women must have the basic rights that a legal entity in this country has. Thus
there is a need to change the recourse source of marital rape from domestic
violence act, 2005 to the criminalization of marital rape.
Award Winning Article Is Written By:
- Nimeshbhai Bharatbhai Desai v State of Gujarat  GUJHC 0291
- Masiya v Director of Public Prosecutions Pretoria (The State) and
Another  SACC 0027(India).
- Rosemarie Tong, Women Sex and the Law (1st edition, Rowman &
Littlefield 1984) 94.
- Sir William Blackstone, Commentaries on the Laws of England
(Volume 1, OUP OXFORD, 1765) 442-445 .
- R Amy Elman, Sexual subordination and state intervention: comparing
Sweden and the United States (1st edition, Berghahn Books, 2000)
- R Amy Elman, Sexual subordination and state intervention: comparing
Sweden and the United States (1st edition, Berghahn Books,
- Editorial Aranzadi, 'Actualidad Juridicia Aranzadi'(1992) accessed
28 july, 2020
- Irish Statute Book, Criminal law (Rape)(Amendment) Act,
1990, s 1, schedule 5.
- Marital rape in India:36 countries where marital rape is not a crime
(India today, 12 March 2016)
accessed 25 June 2020.
- Aishwarya Mishra, India : Law On Marital Rape – A March Needed
Reform In Our Legal System (Mondaq, 13 April 2018)
accessed 18 July 2020.
- Indian penal code, 1860, s 375.
- Indian Penal Code, 1860, s 376A.
- Indian Penal Code, 1860, s 376(1).
- Indian Penal Code, 1860, s 376(1).
- Indian Penal Code, 1860, s 376A.
- Indian Penal Code (Amendment adding exception) Order 2017, s 376.
- The Protection of Women from Domestic Violence Act, 2005, s
- Akhil Khadidal, Marital rape shouldn't be crime in India: Ex-CJI Misra,
(2019) DECCAN HERALD accessed
25 July 2020.
- Roshi Surele &
- Govind Gupta
Authentication No: OT31701798440-31-1020